There is something deceptively arcane in the details of a report released last week on the criminal defense of juveniles in Los Angeles County, and in a follow-up motion the Board of Supervisors is to take up on Tuesday. Panel lawyers, flat fees, hourly rates, caseloads — that kind of thing.
Don’t be fooled. The question before the board is one of the basic morality (or lack of it) in a system that for more than two decades has parceled out minimal legal defense to thousands of juveniles accused of crimes — at the very point in their lives when a strong advocate could make the difference between a responsible, productive life and a downward spiral of incarceration and failure. The status quo is unjust, arguably unconstitutional and, by the way, needlessly wasteful of county and taxpayer resources.
It’s important to remember that most defendants who can’t afford to hire a lawyer, regardless of whether they are adults or juveniles, get the public defender, and that’s fine. Los Angeles County created the first-ever Public Defender’s Office more than a century ago to provide indigent defendants with high-quality, salaried lawyers who are part of an office that can pool resources, keep up with trends and training and create efficiencies by sharing caseloads.
But the public defender often has a conflict of interest. Consider, for example, when two people are accused of stealing a bike. Each might blame the other for the crime, so they can’t have the same lawyer. One gets the public defender. For many years, the second one got a private lawyer from a county-approved panel, who was paid by the hour and — county officials argued — had too little incentive to keep costs down.
The [L.A. County Board of Supervisors] simply must ensure that the current unconscionable system of defense is not renewed.
In the 1990s, when the county was effectively broke, supervisors needed to save money and considered — but rejected — converting from an hourly rate to a flat rate for conflict lawyers in adult cases because of the opposite incentive: Flat fees encouraged attorneys to gather up as many cases as possible and perform as little work on each of them as possible. Even to people who don’t care about criminal defendants, it should be clear that unconstitutionally inadequate assistance of counsel would wind up costing county taxpayers more than it saved due to reversals and liability lawsuits.
For adult defendants, the county’s solution was to create a second, separate public defender’s office: the Alternate Public Defender, whose legal work over more than two decades has been widely lauded for cost effectiveness and high quality. Its reputation among L.A. judges and lawyers is superb. It’s a model county department.
But, back in the 1990s, the Board of Supervisors went a different way with defendants under age 18. For their lawyers, the board said, a flat fee of less than $300 per case — and all the perverse incentives that went with it — was just fine, even though adequate defense often requires many weeks of work.
The fee, which has inched up over the years, has yielded results that should have been predictable. More juvenile defendants represented by those flat-fee panel lawyers get sentenced to “camps” — juvenile jails — than their counterparts represented by the public defender. That means a higher cost to taxpayers, who foot the bill for each of those jailed teenagers, even though the outcomes (criminal recidivism, homelessness, employment) are far better for those whose sentences are served in community and school settings.
Now, though, the supervisors are squabbling over how to replace the flat-fee system, floating ideas as varied as finally allowing the alternate public defender to represent juveniles (it already performs that function admirably in Lancaster) to, oddly, scrapping that office altogether.
Let’s hope the board focuses on fixing what’s broken and not what isn’t. No other county in the state does indigent juvenile defense by flat fee. Los Angeles County has a system that works for adult defendants. It ought to be allowed to work for juveniles as well.